C.A. 3rd

The Third Appellate District affirmed a judgment with directions. In the published portion of its opinion, the court held that a defendant who was convicted of forcible oral copulation and attempted murder of the same victim was properly subjected to great-bodily-injury enhancements for both of those crimes.

Theodore Wooten was convicted of multiple violent crimes against M.S. and H.D., including one count each of forcible oral copulation and attempted murder of M.S. The jury found Wooten liable for a great-bodily-injury enhancement as to both those crimes. The trial court imposed both enhancements in sentencing Wooten to prison. Wooten appealed, contending that under Penal Code § 654 and People v. Ahmed (2011) 53 Cal.4th 156, the trial court erred by imposing both enhancements for his crimes against M.S. because both crimes were part of a single, indivisible course of conduct.

The court of appeal affirmed, holding that both great-bodily-injury enhancements were properly imposed.

The court noted that Ahmed held that § 654 may apply to sentence enhancements that arise from the circumstances of the crime and are not imposed based on the offender’s status. However, Ahmed did not address the imposition of multiple sentence enhancements for separate substantive offenses. The court pointed out that in cases in which the criminal acts that formed the basis for multiple convictions reflected separate intents, objectives, or events, it was held that § 654 was inapplicable.

The court reasoned that the same analysis should apply to the application of § 654 to multiple enhancements. Thus, § 654 should not bar enhancements attached to multiple substantive offenses that under § 654 might themselves be separately punished. Further, that should be the case even when, as here, the multiple enhancements were the same. Nothing in § 654 or Ahmed requires that the attached enhancements be stayed so long as the underlying convictions arise from separate criminal acts.

Here, the evidence showed that Wooten had separate criminal intents for forcible oral copulation and attempted murder of M.S. Wooten characterized his offenses as arising out of an indivisible attack on M.S. The court disagreed, rejecting Wooten’s attempt to conflate his intent to kill M.S. and his intent to force her to orally copulate him.

The court acknowledged that Wooten might have engaged in sustained violence against M.S. However, at some point, Wooten’s purpose shifted from his sexual gratification to the sadistic infliction of pain. Accordingly, Wooten was not entitled to a stay of the great-bodily-injury enhancement imposed for attempted murder of M.S. because § 654 did not bar punishment of both Wooten’s substantive crimes against her.

Further, Wooten’s contention that the trial court found that the great-bodily-injury enhancements arose out of “the very same criminal behavior” had to be rejected because those enhancements were not imposed for a single, indivisible assault on M.S. Rather, as noted, Wooten’s violent attempt to sexually assault M.S. and his subsequent attack that was intended to kill M.S. could not be conflated.

The evidence showed that Wooten burst into M.S.’ motel room, choked her, and told her to remove her clothes. M.S. complied with Wooten’s order to go into the bathroom, where he told M.S. to bend over because he wanted to have sex with her. To facilitate that, Wooten punched and choked M.S. There was evidence that M.S. had neck injuries consistent with strangulation.

However, Wooten became angry when he could not make vaginal or anal penetration and forcibly orally copulated M.S., who complied, although she “was getting frustrated.” When M.S. pushed Wooten away and tried to run for the door, a new attack ensued. M.S. testified that Wooten’s initial violence in the bathroom had been “sexual, more sexual.” However, Wooten’s second assault, when he focused on beating M.S., was intended to punish her for his inability to make vaginal penetration by inflicting life-threatening injuries. It was during this assault that Wooten kicked M.S.’ head open so that her scalp separated from her skull. The two crimes were separate criminal acts.